R v Tomlin

[1995] QCA 177

COURT OF APPEAL

[1995] QCA 177

McPHERSON JA
PINCUS JA

de JERSEY J

CA No 56 of 1995
THE QUEEN
v.

SCOTT ALAN TOMLIN Applicant

BRISBANE
..DATE 04/04/95
McPHERSON JA: This is an application for leave to appeal
against the sentences imposed in the District Court in
Maroochydore on the applicant on 9 February 1995.

The sentences and the offences in respect of which they were imposed are as follows. Imprisonment for four years for being in a dwelling house with intent; 18 months for assault with intent to rape; four years for entering a dwelling house with intent; and 12 years for the offence of rape.

The Judge recommended that the applicant be considered for parole after serving seven years of that sentence. The effective sentence, it will be seen, was 16 years subject to that recommendation.

The offences were committed on two separate occasions. The
first two offences, that is, being in a dwelling house with
intent and assault with intent to rape, were committed on
18 October 1994. The victim on that occasion was a 30-year-
old woman who lived alone in a flat. She had been introduced
to the applicant by a friend from an adjoining flat about a
month or two before the occasion when the offences were

committed.

She met him again about two weeks before 18 October, when he
came to her flat at about 3 o'clock in the morning. She spoke
to him briefly on that occasion and he asked her to supply him
with "speed" and also to have sex with him, offering to pay
her $100. She refused saying she was not a whore.
On the night of 17 October 1994 the complainant went to bed
about 10.30 and read for a while before going to sleep. She
was wakened by knocking at the door and by hearing her dog
bark. After going to the door she saw the applicant there.
He asked her to hold his wallet for an hour, for whatever
reason he might have had for that, but she refused and told
him to leave and tried to close the door.

He forced the door open again and forced his way inside, pushing the complainant backwards on to a couch. He then pinned her down with his knees and arms and held a hand over her nose and mouth. She had difficulty breathing and tried to resist but could not do so. The applicant told her, according to her account of it, that, "We could do this the easy way or the hard way" and that he was going to rape her no matter what happened.

He struck her a back-handed blow to the forehead. She told him she wished to go to the toilet and that it was becoming urgent. Eventually he agreed to let her go outside the flat but kept hold of her while she squatted outside the front door and urinated. Towards the end of this incident she managed to escape from his grip and ran off, throwing a bicycle in his path to obstruct him, and eventually made her way to a neighbour to whom she complained.

When examined by a doctor on the following day a graze was found on her left cheek, a graze on her left nose. These were consistent with fingernail injuries and a bruise and graze on the forehead. She is, not surprisingly, now said to be suffering from stress as a result of that experience, and is using sleeping pills more heavily.

The applicant was interviewed by police on 13 December 1994 which, it may be noted, was a date after he had committed the other offences with which we are concerned here on 4 December 1994. He denied the earlier offences involved and persisted in that denial.

At the trial, where he pleaded not guilty, he gave evidence. There is a passage in his evidence which, when one reads it, can only lead to the conclusion that he was then admitting that he had done the acts amounting to the commission of this offence. He said he had told the girl that if he did not get money, or did not get speed, he was going to fuck her one way or the other.

The second set of offences, which attracted the sentence of imprisonment for 12 years, was even more serious than the first. As already mentioned, it took place on 4 December. The circumstances are that the complainant lived at a retirement village for elderly people at Caloundra. She had been there for some five years after suffering a stroke. She was a widow aged 86 at the time of the offences.

At about 5.30 a.m. on 4 December, she heard a knock on her door. She had previously heard knocks on other doors before her own. She answered the knock, expecting to see her grandson, but she was confronted by the prisoner pushing the door further open.

He shoved her onto her bed. She tried to resist by pulling his hair, but to no avail. The complainant used a frame in order to walk and she tried to place the frame between herself and the applicant when he came into her room. He simply pushed it away. He held a pillow over her head and pulled her underclothing off before raping her and ejaculating inside her. He then ran off. Mrs Smith summoned help and was treated for injuries, including bruising to upper arms, a tear to the skin on the right forearm, bruising and trauma to the vagina, including a lesion to the labia majora.

The applicant was interviewed by police on 13 December 1994 and made full admissions. He told the police he had been drinking and that he did not know what he was doing. He said, "I done her over. I raped the woman. I really am sorry, eh, but it makes me sick just to think about it." He agreed to the presentation of an ex officio indictment and pleaded guilty at the first reasonable opportunity. It was because of that that His Honour made the recommendation for parole to which I have referred.

The applicant's personal circumstances, which should now be mentioned, are these. He is described as a trawlerman, aged 24 years at the time of the offences, and he has a not inconsiderable record of previous offences, although none of them are offences involving personal violence of a kind shown here. Between 1986 and 1992, he has made eight court appearances for convictions, which include 15 counts of stealing, attempted break and enter, six counts of wilful destruction and arson of a vehicle. There are also some street offences, such as three convictions for resisting arrest and one or more for obscene language.

As well as that, there are offences involving breach of court orders, such as breach of bail and on three occasions breaches of probation. He has been fined and placed on probation twice, and also sentenced to 18 months imprisonment. A psychiatric assessment carried out apparently in April 1991 produced the opinion from Dr Bell that the applicant is a person with an anti-social attitude.

The application for leave to appeal is based essentially on
the submission that when one looks at the two sets of offences
in this case, serious though they are, the sentence imposed is
so heavy as to be oppressive or "crushing" in its effect; that
is to say, it offends the "totality" principle discussed in a
number of cases, and recently re-stated in this Court in R v.
Clements, CA No 279 of 1992. In that case, the joint judgment
of the Chief Justice and Mr Justice de Jersey, reference is
made to the requirement that the sentencing judge keep in mind
the possibility that he might be imposing a disproportionate
sentence for the totality of the conduct involved in the
matter or matters before him.
The judge in the present case specifically referred to that
principle, so that there is no question of his having
overlooked it in the course of his sentencing here. The
overall sentence involved here may, when one looks at the
cumulative effect of it, appear high; 16 years is a long time
out of anyone's life to spend in prison. On the other hand,
the court has, in my experience, consistently taken the
attitude that for the offence of rape committed after breaking
into a woman's home a sentence of a substantial duration is
called for. My impression is that the tariff penalty for such
offences or for offences committed in those circumstances
ordinarily begins with imprisonment for a term of 12 years.
When, in this case, is added the fact that the applicant
apparently deliberately went to an old people's home and
forced his way into the room of an elderly and defenceless
lady of 85 years of age, physically attacking her without
mercy, it is difficult to suppose that a sentence of less than
12 years for that offence alone could possibly be excessive.
An even higher sentence could be justified for that offence
alone. To add nothing for the other offences committed
several weeks before seems to me to have the unacceptable
result that the more offences that are committed the lower the
penalty for each of them will be. It may be that, on one view
of it, the totality principle requires such a result. For my
part, I do not think that it is a result that ought to follow
in this case. The overall sentence is not so disproportionate
to the totality of the offending conduct as to require
revision.
The offence committed on the younger woman of 30 years of age
on 15 October in this case was a very serious one, in which it
may be said that the complainant was lucky to escape the fate
that was obviously planned for her. Had she not succeeded in
eluding her captor, it seems likely that she too would have
been raped.

When all these matters are taken into account, I can not see that the effect of making the sentences cumulative, so as to produce an effective sentence of 16 years in this case, takes it beyond the limits of a proper sentencing discretion. Although it might have been possible to adjust it downwards a little, I do not consider that it is pitched at such a level that this Court should interfere with it. I would, in consequence, refuse the application for leave to appeal.

PINCUS JA: As the presiding Judge has mentioned, we were
referred to remarks in the principal judgment in Clements,
that of the Chief Justice and Mr Justice de Jersey; I have
found those remarks persuasive as to the application of the
totality principle. We were also referred to Rosenberger, a
decision of this Court (unreported, 21 November 1994), in
which a rather younger man than the applicant, with a criminal
record rather less extensive than his, was sentenced in this
Court to nine years imprisonment for the rape of an elderly
lady - one of the same age, as it happens, as this applicant's
second victim.
Mr Lynch submitted, in the end, that the total sentence should
not have exceeded 14 years and, speaking for myself, I was
somewhat troubled by that contention. I have also noted that
there was not a substantial reduction in the applicant's
punishment for the applicant's ready admission of guilt to the
police, when questioned about the major offence, and his plea
of guilty to that charge. In short, I have been concerned
that the total sentence of 16 years imposed upon this young
man might be thought excessive. It is certainly a substantial
sentence, but I have come to the view, like that of the
presiding Judge, that we should not interfere, and I agree
with His Honour's proposed order.
de JERSEY J: I also agree with the order for the reasons
given by Mr Justice McPherson.

McPHERSON JA: The application for leave to appeal against sentences will be dismissed.

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